Aadhaar: Fundamental rights act as a firewall between individual and state power, Supreme Court told

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New Delhi: Fundamental rights act as a “firewall between an individual and concentrated state power,” a fact illustrated by the Supreme Court’s privacy ruling, a lawyer in the Aadhaar case told the top court on Tuesday.

The court ruled in August that privacy is a fundamental right under the Constitution of India, although like all other fundamental rights, it is not absolute.

Shyam Divan, counsel for the petitioners who have challenged the constitutional validity of the Aadhaar programme, drew the court’s attention to that part of the ruling where justice Rohinton F. Nariman had held that privacy was not an elitist concept and said that in order to restrict privacy, the state’s interest must be compelling.

“Privacy is a natural right, a condition precedent to the enjoyment of any other fundamental right, and it includes the right to control the dissemination of information,” Divan told the court, drawing inference to the dissemination of data under Aadhaar. He said privacy was integral to liberty and freedom.

A Constitution bench comprising Chief Justice Dipak Misra and justices D.Y. Chandrachud, A.K. Sikri, A.M. Khanwilkar and Ashok Bhushan is hearing the case against Aadhaar.

A total of 31 petitions have been tagged by the Supreme Court to be heard by the Constitution bench. They challenge several aspects of Aadhaar, the 12-digit unique identity number that has become a bedrock of government welfare programmes, the tax administration network and online financial transactions, and the use/sharing of personal data collected by the Unique Identification Authority of India (UIDAI).

Divan took the judges through various sections of the Aadhaar Act, defining terms such as ‘authentic information, ‘biometric information,’ and ‘core biometric information.’

He said the terms ‘biometric’ and ‘core biometric’ had been left open-ended, enabling the UIDAI to collect data beyond an individual’s fingerprint and iris scan to issue the Aadhaar number.

Divan also criticized the power handed to the UIDAI to outsource the security of the database which he said had raised concerns about data breaches and about the possibility of India turning into a surveillance state.

When it comes to data breaches and surveillance, the court would have to consider that India is part of a networked world where private parties were anyway tracking everyone in great detail, justice Chandrachud observed.

“Can’t you obviate the problem of aggregation of data sets by specifying in law that data can be used only for the purpose that it is collected,” he asked Divan.

He also questioned Divan as to how a breach of the statutory provision would affect the constitutionality of the statute itself.

“The statute is unconstitutional because it seeks to sanctify the Aadhaar programme, which is incompatible with a free and open democratic republic,” Divan responded.

At the last hearing, the petitioners, who include non-government organizations, privacy campaigners, retired army officers and the government of West Bengal, challenged the process of collecting personal and biometric information for the Aadhaar programme, and highlighted its implications for privacy.

They have challenged the government making Aadhaar mandatory for availing of social welfare benefits and filing of income-tax returns (ITRs) as well as for obtaining and retaining the Permanent Account Number required for filing ITRs. They have also cited the potential for infringement of an individual’s right to privacy.

Arguments by the petitioners will continue to be heard on Wednesday.livemint